01 November 2012

Rules of Recognition

'Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses' by Richard Ross in 217 Past and Present (2012) 79-115 examines -
two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law from a limited set of first principles such as self-preservation and sociability, one faced the problem of distinguishing immutable natural precepts from rules that arose only to address passing issues in a specific territory.
Natural lawyers and Mosaic legalists did not use the same techniques for separating eternal and transient precepts. Each had its own “rules of recognition” (to borrow a helpful modern concept). My essay compares natural lawyers’ and Mosaic legalists’ rules of recognition, their ways of telling immutable from transitory precepts. In this, it goes against the dominant tendency of modern scholarship to approach the Mosaic legalists and natural lawyers separately rather than in tandem. Reading the two in unison highlights how the projects faced common intellectual challenges. In particular, both natural lawyers and Mosaic legalists used stadial theories of historical change and both implied that immutable law should be convenient under present circumstances. Both used temporally- and contextually-sensitive categories to locate an “eternal” law. But these emphases, if pushed too far, threatened the natural lawyers’ and Mosaic legalists’ enterprise, so both groups developed stabilizing conventions.
The rules of recognition mattered greatly as controversialists deployed natural and Mosaic law in fights over political oaths and allegiance, usury, sabbatarianism, church governance, and a wide range of other issues. Over and again, early modern actors asked the perennial question: What was God, through scripture and nature, commanding us to do? The Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer this most pressing of questions.
 Ross concludes that -
Reading the Protestant natural lawyers and Mosaic legalists in parallel reveals significant similarities in their rules of recognition, a fact overlooked when each is studied in isolation. Both explored how change over time shaped the current form of unchanging precepts; and both asked whether precepts lent essential support to humanly designed institutions and brought good consequences. A tension lurked in their projects. Mosaic legalists and natural lawyers used intellectual categories sensitive to history and social context in order to identify precepts that claimed to rest on a divine foundation, obligate all of Christendom and remain valid eternally.
To understand more clearly the meaning and implications of this tension, it is helpful to specify what it was not. The early modern world was full of jurists and divines using arguments about convenience and history to determine which precepts within a sprawling inherited traditionwouldmove across cultures and times to bind new places, and which would be filtered out. The ‘reception’ of Roman law in Continental Europe and overseas colonization created new forms of legal filtering, adding to the ongoing process under way in metropolitan legal traditions (such as the English common law). French legal humanists asked which elements of Roman law should be left behind as peculiar to Roman pagan society and which principles should bind contemporary Europe because they embodied a transcultural ‘written reason’. England and the Netherlands authorized their settlements in North America and the East Indies to draw on such elements of the metropolitan legal tradition as were consonant with their condition. In both instances, interpreters asked whether precepts should be discarded because they were peculiar to the situation of another people in a different place and time. This echoed the Mosaic legalists—but only echoed them. Those filtering Roman law, colonial law and metropolitan legal traditions selected among ordinances made by people. By contrast, the Mosaic legalists and natural lawyers were trying to identify still-valid perpetual ordinances arising from God, whether introduced through revelation, His infusion of law into the universe or His fashioning of a particular form of rational human nature.
The tension present in the Mosaic legalists’ and natural lawyers’ rules of recognition was not merely a continuation of the long-standing problem of accommodating timeless, divinely grounded principles to the mutability of human affairs. This problem took many forms. To begin with, the unchanging foundational principles of natural and divine law needed to be connected through mid-level propositions to the varying times, places and circumstances of diverse societies. These basic principles were highly general (‘love God’, ‘do no evil’). They could be applied to daily life only if particularized. In Thomist vocabulary, this was done by generating ‘conclusions’ (deductions of more specific secondary and tertiary precepts from foundational principles) and by creating ‘determinations’ (civil and ecclesiastical ordinances that applied natural and divine injunctions to specific cases). A second example of early modern theorists struggling to connect perpetual tenets to alterable communities occurred in the intense English debate over Church structure and governance.
Elizabethan and early Stuart defenders of the Church of England, notably Richard Hooker, struggled to expand the range of adiaphora in order to explain how the eternal ends of Christian faith could be served by a variety of forms of ecclesiastical organization and discipline suited to specific social conditions. The overall challenge in both of these arenas and many others was to produce the ‘conclusions’, ‘determinations’, institutional structures and practices that would give unchanging, divinely grounded principles practical expression amid diverse societies developing over time. The means chosen to effectuate invariant godly ends in a particular community had to take account of historical change, social variation and the claims of convenience. The many typologies distinguishing natural and divine eternal law from humanly made transient law — Domat’s ‘immutable’ and ‘arbitrary’ law, Althusius’s ‘common’ and ‘proper’ law, and so on — made the latter the realm of the ‘utility, condition, and other special circumstances of the country’.
This background allows clearer perception of what was distinctive about the rules of recognition used by Mosaic legalists and Protestant natural lawyers. For them, convenience and social and historical variation did more than shape the means selected to give effect to already known natural and divine principles. The Mosaic legalists and Protestant natural lawyers also worked these factors into their methodology for identifying natural precepts and judicial laws of general equity. Change over time, social structures and convenience — matters of the transient, human world — were incorporated into the rules for recognizing natural and divine precepts that were perpetual, beyond time and culture. This tension, not unknown before but greatly enhanced among the Mosaic legalists and Protestant natural lawyers, distinguished them from prior Renaissance and medieval seekers after eternal ordinances. But attention to historical change and arguments about convenience needed to be carefully contained by stabilizing conventions. The stakes were high. For the Mosaic legalists’ and Protestant natural lawyers’ rules of recognition helped answer that most pressing, perennial question: what was God, through scripture and nature, commanding us to do?